Jennifer Bernstein, JD, MPH
Senior Attorney, The Network for Public Health Law—Mid-States Region
University of Michigan School of Public Health
We continue our series on the interplay between patient privacy and families’ interest in their loved one’s care. Here, Attorney Jennifer Bernstein covers what two states are doing to allow for increased family involvement.
How Are States Addressing Patient Mental Health Privacy?
Though HIPAA is not necessarily a bar to family members obtaining information about their loved ones with mental illness, the wishes of patients are usually paramount. Some states have adopted more innovative legal provisions to help assist families and patients in both protecting privacy while improving care.
In New York, even in cases where the family members are unable to obtain permission to receive information about their relatives, New York State Mental Hygiene Law not only allows but requires the involvement of an authorized representative of the patient in treatment planning. Authorized representatives can include family members. The law presumes that such involvement has important therapeutic benefits to the patient and assists in the patient’s treatment and recovery. The law performs a balancing act. It assists families by allowing the disclosure of limited information, but does not compromise or reveal confidential information that should be kept between therapist and patient. The goal of the law is to increase family involvement without obtaining the express permission of the patient and without violating confidentiality.
Information disclosed to family members can include information about:
- programs available for the patient
- rights and privileges of the patient and family members
- family visits
- legal status of the patient, and
- discharge plans
Also, if not clinically contraindicated and appropriate, health care providers can share information provided by the family with the patient, such as relaying messages of support.
An innovative Minnesota law creates a new type of information release for family caregivers and clarifies the rights of families with respect to the care, treatment and monitoring of loved ones with a mental illness. The law, called the “family involvement law,” allows for limited but important information to be released to family caregivers of patients with mental illness.
In the case of patient’s that do not elect for a full privacy release of information to family members, the law creates an alternative to signing a full privacy release. Under the law, patient’s may sign a partial information release that allows providers to disclose information about:
- diagnosis, admission to or discharge from treatment
- name and dosage of medications prescribed
- side effects of medication
- consequences of the failure to take prescribed medications, and
- summary of the patient’s discharge plan
In the Minnesota law, any person can request mental health information about a person with a mental illness if they either
- live with the person with a mental illness, or
- cares for or helps obtain care for the person with a mental illness, or
- directly involved with monitoring the well-being of the person with a mental illness
To ensure the rights and privacy of patients, the law requires that the caregiver’s involvement must be verified by someone such as a mental health or health care provider, the individual’s doctor, or anyone other than the caregiver putting in the request.
Family advocates for patients with mental illness were the driving force behind the laws in New York and Minnesota. Raising awareness about the benefits to family involvement in patient care, as well as the legal challenges families face in obtaining information about their loved ones can help spur change in other states.
- In what ways are New York and Minnesota getting it right? What’s wrong with their approach?
- What’s happening in your state? Are you supporting it or not?
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